FOIA in SC – Lawsuits, Attorney Fees, and Court Costs
If a public body refuses to turn over documents that are public records when they are requested under SC’s Freedom of Information Act (FOIA), you can file a lawsuit asking the Court to force them to disclose the documents.
If a public body demands an unreasonable, prohibitive fee before turning over public records, you can file a lawsuit asking the Court to force them to disclose the documents for a reasonable fee.
As part of a FOIA lawsuit, the Court can also order the public body to pay attorney fees and court costs that were incurred in filing the lawsuit…
What’s a “public body?” What are “public records?” And what is a reasonable cost?
What Can I Get with a FOIA Request in SC?
SC’s Freedom of Information Act requires any “public body” to provide “public records” at a reasonable cost to any SC citizen who requests them unless the records are exempt under FOIA.
What is a Public Body Under FOIA in SC?
Any SC government agency is a “public body” under the SC FOIA. SC Code Section 40-4-20 defines a public body as:
…any department of the State, a majority of directors or their representatives of departments within the executive branch of state government as outlined in Section 1-30-10, any state board, commission, agency, and authority, any public or governmental body or political subdivision of the State, including counties, municipalities, townships, school districts, and special purpose districts, or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds, including committees, subcommittees, advisory committees, and the like of any such body by whatever name known, and includes any quasi-governmental body of the State and its political subdivisions, including, without limitation, bodies such as the South Carolina Public Service Authority and the South Carolina State Ports Authority.
What is a Public Record Under FOIA in SC?
Public records include most documents and records kept by any public body. Section 40-4-20 defines public records as:
…all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.
SC Code Section 40-4-50 also lists specific types of records that are “declared public information” by the SC legislature, including:
(1) the names, sex, race, title, and dates of employment of all employees and officers of public bodies;
(2) administrative staff manuals and instructions to staff that affect a member of the public;
(3) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(4) those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the public body;
(5) written planning policies and goals and final planning decisions;
(6) information in or taken from any account, voucher, or contract dealing with the receipt or expenditure of public or other funds by public bodies;
(7) the minutes of all proceedings of all public bodies and all votes at such proceedings, with the exception of all such minutes and votes taken at meetings closed to the public pursuant to Section 30-4-70;
(8) reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed. Where a report contains information exempt as otherwise provided by law, the law enforcement agency may delete that information from the report; and
(9) data from a video or audio recording made by a law enforcement vehicle-mounted recording device or dashboard camera that involves an officer involved incident resulting in death, injury, property damage, or the use of deadly force.
How Long Does a Public Body in SC Have to Respond to a FOIA Request?
In most cases, the public body must reply to your FOIA request within 10 business days letting you know whether they intend to provide the materials requested and must make the records available for copying or inspection within 30 days of the FOIA request.
Under SC Code Section 30-4-30, some public records “must be made available for public inspection and copying during the hours of operations of the public body” when the request is made in person and when the records are not otherwise exempt under FOIA, including:
- Minutes of the meetings of the public body for the prior six months;
- “Reports which disclose the nature, substance, and location of any crime or alleged crime reported as having been committed” for the previous 14 days;
- “Documents identifying persons confined in a jail, detention center, or prison for the preceding three months;” and
- “All documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period.”
What is Exempt from Disclosure Under FOIA in SC?
Of course, the longest section in the Freedom of Information Act is the list of public records that are exempt from disclosure, which includes:
- Trade secrets;
- Information that would constitute an unreasonable invasion of personal privacy;
- Documents that relate to contracts or sales of property before the contracts are entered into or the sales are final;
- Some categories of compensation paid by public bodies (but compensation of $50,000 or more annually must be disclosed);
- Materials that are covered by attorney-client privilege;
- Standards used by the SCDOR to select returns for audits;
- Anonymous gifts to a public body;
- Structural bridge plans or designs;
- Autopsy records; and
Law enforcement records, including reports, audio, and video, are exempt if disclosure would:
- Interfere with a prospective law enforcement proceeding;
- Deprive a person of a fair trial;
- Constitute an unreasonable invasion of privacy;
- Disclose the identity of a confidential source;
- Disclose law enforcement techniques and procedures if disclosure would result in “circumvention of the law;” or
- Endanger the life or safety of an individual.
This is not a complete list of the exemptions, and there is a provision that exempts “matters specifically exempted from disclosure by statute or law,” which means other exemptions are contained in other SC laws.
Can a Public Body Redact a FOIA Response?
If a portion of a FOIA response is covered by an exemption while other parts of the FOIA request are not, the agency must still respond, providing the non-exempt portions of the documents requested:
If any public record contains material which is not exempt under subsection (a) of this section, the public body shall separate the exempt and nonexempt material and make the nonexempt material available in accordance with the requirements of this chapter.
As a practical matter, this means that some records provided under FOIA will be redacted to protect individuals’ privacy or to protect law enforcement methods when appropriate. If records are unjustifiably redacted, however, the agency is in violation of SC’s FOIA.
What Can a Government Agency Charge Me for Producing Public Records?
Last week, the Sun News reported that it requested public records related to payments made by local municipalities to settle lawsuits:
The Sun News sent out the same request — seeking all records that reference or relate to payments made by, or on behalf of, the public agency to settle actual or threatened lawsuits during the past five years — to the county, Horry County Schools, Myrtle Beach, North Myrtle Beach, Loris, Aynor, Conway and Surfside Beach.
In response to their request, Myrtle Beach and North Myrtle Beach provided the records without charge. Horry County Schools had already published their information on a website. Conway charged $42.40, and Surfside Beach charged $21.60. Aynor and Loris replied that they either had no responsive records or were unable to locate their records because their records room was flooded during Hurricane Florence.
Horry County replied that the Sun News would have to pay $75,500 to fulfill their request.
What do you do if a government agency makes a ridiculous, unjustified request for an outrageous sum of money that is clearly an attempt to discourage FOIA requests?
What if They Want an Unreasonable Fee for a FOIA Request?
As the Sun News surely knows, when a government agency refuses to turn over public records or charges an unjustifiable, prohibitive fee, you get an attorney and file a lawsuit under FOIA.
SC Code Section 30-4-100 authorizes any SC citizen to file suit asking for a declaratory judgment and injunctive relief to enforce the provisions of FOIA:
(A) A citizen of the State may apply to the circuit court for a declaratory judgment, injunctive relief, or both, to enforce the provisions of this chapter in appropriate cases if the application is made no later than one year after the date of the alleged violation or one year after a public vote in public session, whichever comes later. Upon the filing of the request for declaratory judgment or injunctive relief related to provisions of this chapter, the chief administrative judge of the circuit court must schedule an initial hearing within ten days of the service on all parties. If the hearing court is unable to make a final ruling at the initial hearing, the court shall establish a scheduling order to conclude actions brought pursuant to this chapter within six months of initial filing. The court may extend this time period upon a showing of good cause. The court may order equitable relief as it considers appropriate, and a violation of this chapter must be considered to be an irreparable injury for which no adequate remedy at law exists.
Not only does SC’s FOIA authorize a lawsuit to enforce the provisions of the FOIA, but it also authorizes attorney fees and court costs:
(B) If a person or entity seeking relief under this section prevails, he may be awarded reasonable attorney’s fees and other costs of litigation specific to the request. If the person or entity prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion of those attorney’s fees.
What does this mean?
It means that, whenever a government agency refuses to turn over public records at a reasonable expense, the person requesting the records should file suit and demand attorney fees and court costs – how else can we ensure that public agencies are complying with FOIA?
It also means that, if you are making a FOIA request that may end in a lawsuit, you should retain a SC Freedom of Information Act attorney to advise you – FOIA’s list of what constitutes public records and which records are exempt is complicated and there are also appellate opinions that define what an agency must turn over.
Freedom of Information Act Attorney in Charleston, SC
Charleston, SC criminal defense lawyer Grant B. Smaldone’s law practice is focused on criminal defense cases in SC state and federal courts – FOIA requests and dealing with government agencies is a regular part of our criminal defense practice and independent criminal defense investigations.
If you need to make a FOIA request for public documents or if a SC public body is refusing to provide public records to you at a reasonable cost, call now at (843) 808-2100 or contact us via email for a consultation today.